Reconciliation Exists Because of Filibusters
The House of Representatives amended its rules to prevent Filibusters in 1842, but they have remained a significant part of how the Senate operates.
Hijacking the Senate was limited in 1917 by the addition of a rule allowing a two-thirds majority vote to stop a filibuster, called “Cloture.”
To get Cloture, 60 Senators must vote to end the filibuster.
(Side bar- I know! 60 isn’t 2/3 of 100, but it used to take 67 votes before the rules changed in 1975. Here is a great resource about that.)
The net effect is when one party has 41 votes (which could include Independents who align with that party) it becomes impossible for the other party to pass any (controversial) legislation.
To put it the other way- the party in majority needs 60 votes to be filibuster-proof; currently, the GOP only has 52.
Reconciliation is a Filibuster Workaround
Reconciliation was created “to rationalize the process by which Congress set the federal budget.” It allows bills to pass in the Senate* by a simple majority (51 votes), but only if the legislation in question changes (up or down) spending, revenues, and/or the federal debt limit.
Even better for the Senate, Reconciliation not only prohibits filibusters but also limits amendments to the bill and shortens the time for any debate.
*The benefits (if any) to the House of Representatives are limited as the House rules are similar to the provisions of Reconciliation already.
The Byrd Rule & the Parliamentarians
(*warning- this gets wonky- I will be Quick)
There are limits to Reconciliation. The Byrd Rule (named for Senator Robert Byrd and passed in 1985) requires that a bill proceeding under the device may not contain an “extraneous matter” or something “merely incidental” to the federal budget.
Specifically, under the Byrd Rule legislation utilizing the Reconciliation process:
- May only involve budget-related changes and cannot include policies that have no fiscal impact (or “merely incidental” impact);
- May not change Social Security spending or dedicated revenue;
- May not increase the budget beyond “the window” (usually 10 years).
At the same time, the House of Representatives and the Senate each have their Parliamentarian; their role is to inform their respective bodies about the rules and procedures for passing laws. The Parliamentarians keep Congress in line.
The Senate Parliamentarian is, therefore, not only charged with assuring that a law meets the requirements of the Reconciliation process but follows the Byrd Rule as well.
Didn’t the Democrats Pass Obamacare Through Reconciliation?
Although that is a commonly held belief, No.
And the reason proves what I am trying to illustrate- when the Senate passed the Affordable Care Act the Democratic party controlled 60* seats.
There were plenty of procedural moves back in 2010 (some would say shenanigans), but passing the law through Reconciliation was not necessary.
*Two Independent Senators caucused with the Democrats
What to Watch in the GOP Obamacare Vote
All of this is the background to the “Obamacare Repeal and Replace” battles we have seen among the GOP Senators since May.
The Republican Senate Leadership needs 60 votes to be filibuster-proof; no one doubts the intent of the Democrats to filibuster the repeal of their party’s signature law if they can.
And the GOP only has 52 votes, or 53 because Vice President Mike Pence holds tie-breaking authority as the President of the Senate.
End result: the GOP can only tolerate 2 defections.
Every vote to pass an Obamacare Repeal (and possibly “Replace”) in the Senate reflects compromise, amendments and (in some cases) special funding for that Senator’s state (Mitch McConnell has about $200 Billion to “Make Deals”).
Now parts of the Senate bill (in all of its forms) are being questioned under the Byrd Rule. Special funding to sway votes from New York, the exemption of members of Congress from the new law, the limitation on “essential benefits,” and Ted Cruz’s attempt to get cheap insurance on the Exchanges may all get deleted. Will the Senate votes earned through these measures remain “Yes?”
Which is why it was significant last Friday when the Senate Parliamentarian “challenged key provisions that are needed to win conservative votes and to make the health bill workable” on the House side, specifically the de-funding of Planned Parenthood and the prohibition of using federal subsidies to purchase insurance that covers abortion.
These items were critical to getting the House version of “Repeal and Replace” passed back in May. (Yes! Remember that the House must pass any final legislation as agreed to by the Senate before this is all over!)
Will the Representatives that insisted on those additions vote for a final bill without them?
It promises to continue to be a fascinating Summer. The issues are important, the process and politics are riveting.
And if you found this a tedious read, remember you can pull it back out when Congress finally gets to Tax Reform. (And thanks for sticking with me!)
(One more thing)
Every time I have cited a number I have thought of Senator John McCain. I know you all will join me in hoping and praying that he will continue to be part of this summer’s votes, and important debates for many years to come.
There are important details our legislative process that I have left out. If you want to know more, I found these resources particularly helpful: Reconciliation, The Byrd Rule and the Role of the Parliamentarian.